S.B. 271

1

SOLID AND HAZARDOUS WASTE ACT
2 AMENDMENTS
3 2007 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Sheldon L. Killpack
6 House Sponsor: ____________
7
8 LONG TITLE
9 General Description:
10 This bill amends the Solid and Hazardous Waste Act.
11 Highlighted Provisions:
12 This bill:
13 . defines terms;
14 . requires a person subject to a waste permit to obtain consent of the current owner of
15 a waste facility before submitting information to the executive secretary;
16 . authorizes the executive secretary to:
17 . issue enforceable written assurances;
18 . make determinations regarding corrective action; and
19 . partition real property from a permit; and
20 . authorizes the Solid and Hazardous Waste Control Board to make rules.
21 Monies Appropriated in this Bill:
22 None
23 Other Special Clauses:
24 This bill provides an immediate effective date.
25 Utah Code Sections Affected:
26 AMENDS:
27 19-6-102, as last amended by Chapter 353, Laws of Utah 1998

28 19-6-108, as last amended by Chapter 43, Laws of Utah 2005
29 ENACTS:
30 19-6-108.3, Utah Code Annotated 1953
31
32 Be it enacted by the Legislature of the state of Utah:
33 Section 1. Section 19-6-102 is amended to read:
34 19-6-102. Definitions.
35 As used in this part:
36 (1) "Board" means the Solid and Hazardous Waste Control Board created in Section
37 19-1-106 .
38 (2) "Closure plan" means a plan under Section 19-6-108 to close a facility or site at
39 which the owner or operator has disposed of nonhazardous solid waste or has treated, stored, or
40 disposed of hazardous waste including, if applicable, a plan to provide postclosure care at the
41 facility or site.
42 (3) (a) "Commercial nonhazardous solid waste treatment, storage, or disposal facility"
43 means a facility that receives, for profit, nonhazardous solid waste for treatment, storage, or
44 disposal.
45 (b) "Commercial nonhazardous solid waste treatment, storage, or disposal facility"
46 does not include a facility that:
47 (i) receives waste for recycling;
48 (ii) receives waste to be used as fuel, in compliance with federal and state
49 requirements; or
50 (iii) is solely under contract with a local government within the state to dispose of
51 nonhazardous solid waste generated within the boundaries of the local government.
52 (4) "Construction waste or demolition waste":
53 (a) means waste from building materials, packaging, and rubble resulting from
54 construction, demolition, remodeling, and repair of pavements, houses, commercial buildings,
55 and other structures, and from road building and land clearing; and
56 (b) does not include: asbestos; contaminated soils or tanks resulting from remediation
57 or cleanup at any release or spill; waste paints; solvents; sealers; adhesives; or similar
58 hazardous or potentially hazardous materials.

59 (5) "Demolition waste" has the same meaning as the definition of construction waste in
60 this section.
61 (6) "Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or
62 placing of any solid or hazardous waste into or on any land or water so that the waste or any
63 constituent of the waste may enter the environment, be emitted into the air, or discharged into
64 any waters, including groundwaters.
65 (7) "Executive secretary" means the executive secretary of the board.
66 (8) "Generation" or "generated" means the act or process of producing nonhazardous
67 solid or hazardous waste.
68 (9) "Hazardous waste" means a solid waste or combination of solid wastes other than
69 household waste which, because of its quantity, concentration, or physical, chemical, or
70 infectious characteristics may cause or significantly contribute to an increase in mortality or an
71 increase in serious irreversible or incapacitating reversible illness or may pose a substantial
72 present or potential hazard to human health or the environment when improperly treated,
73 stored, transported, disposed of, or otherwise managed.
74 (10) "Health facility" means hospitals, psychiatric hospitals, home health agencies,
75 hospices, skilled nursing facilities, intermediate care facilities, intermediate care facilities for
76 the mentally retarded, residential health care facilities, maternity homes or birthing centers, free
77 standing ambulatory surgical centers, facilities owned or operated by health maintenance
78 organizations, and state renal disease treatment centers including free standing hemodialysis
79 units, the offices of private physicians and dentists whether for individual or private practice,
80 veterinary clinics, and mortuaries.
81 (11) "Household waste" means any waste material, including garbage, trash, and
82 sanitary wastes in septic tanks, derived from households, including single-family and
83 multiple-family residences, hotels and motels, bunk houses, ranger stations, crew quarters,
84 campgrounds, picnic grounds, and day-use recreation areas.
85 (12) "Infectious waste" means a solid waste that contains or may reasonably be
86 expected to contain pathogens of sufficient virulence and quantity that exposure to the waste by
87 a susceptible host could result in an infectious disease.
88 (13) "Manifest" means the form used for identifying the quantity, composition, origin,
89 routing, and destination of hazardous waste during its transportation from the point of

90 generation to the point of disposal, treatment, or storage.
91 (14) "Mixed waste" means any material that is a hazardous waste as defined in this
92 chapter and is also radioactive as defined in Section 19-3-102 .
93 (15) "Modification plan" means a plan under Section 19-6-108 to modify a facility or
94 site for the purpose of disposing of nonhazardous solid waste or treating, storing, or disposing
95 of hazardous waste.
96 (16) "Operation plan" or "nonhazardous solid or hazardous waste operation plan"
97 means a plan under Section 19-6-108 to own, construct, or operate a facility or site for the
98 purpose of disposing of nonhazardous solid waste or treating, storing, or disposing of
99 hazardous waste.
100 (17) (a) "Solid waste" means any garbage, refuse, sludge, including sludge from a
101 waste treatment plant, water supply treatment plant, or air pollution control facility, or other
102 discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting
103 from industrial, commercial, mining, or agricultural operations and from community activities
104 but does not include solid or dissolved materials in domestic sewage or in irrigation return
105 flows or discharges for which a permit is required under Title 19, Chapter 5, Water Quality
106 Act, or under the Water Pollution Control Act, 33 U.S.C., Section 1251, et seq.
107 (b) "Solid waste" does not include any of the following wastes unless the waste causes
108 a public nuisance or public health hazard or is otherwise determined to be a hazardous waste:
109 (i) certain large volume wastes, such as inert construction debris used as fill material;
110 (ii) drilling muds, produced waters, and other wastes associated with the exploration,
111 development, or production of oil, gas, or geothermal energy;
112 (iii) fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste
113 generated primarily from the combustion of coal or other fossil fuels;
114 (iv) solid wastes from the extraction, beneficiation, and processing of ores and
115 minerals; or
116 (v) cement kiln dust.
117 (18) "Storage" means the actual or intended containment of solid or hazardous waste
118 either on a temporary basis or for a period of years in such a manner as not to constitute
119 disposal of the waste.
120 (19) "Transportation" means the off-site movement of solid or hazardous waste to any

121 intermediate point or to any point of storage, treatment, or disposal.
122 (20) "Treatment" means a method, technique, or process designed to change the
123 physical, chemical, or biological character or composition of any solid or hazardous waste so as
124 to neutralize the waste or render the waste nonhazardous, safer for transport, amenable for
125 recovery, amenable to storage, or reduced in volume.
126 (21) "Underground storage tank" means a tank which is regulated under Subtitle I of
127 the Resource Conservation and Recovery Act, 42 U.S.C., Section 6991, et seq.
128 (22) "Waste permit" means an approved operation plan, closure plan, modification
129 plan, or an approval issued by the executive secretary as authorized by Section 19-6-108 , the
130 Resource Conservation and Recovery Act, 42 U.S.C. Sec. 6901 et seq., or federal regulations
131 authorized by the Resource Conservation and Recovery Act.
132 (23) "Waste permittee" means a person who has been issued a waste permit by the
133 executive secretary.
134 Section 2. Section 19-6-108 is amended to read:
135 19-6-108. New nonhazardous solid or hazardous waste operation plans for
136 facility or site -- Administrative and legislative approval required -- Exemptions from
137 legislative and gubernatorial approval -- Time periods for review -- Information required
138 -- Other conditions -- Revocation of approval -- Periodic review.
139 (1) For purposes of this section, the following items shall be treated as submission of a
140 new operation plan:
141 (a) the submission of a revised operation plan specifying a different geographic site
142 than a previously submitted plan;
143 (b) an application for modification of a commercial hazardous waste incinerator if the
144 construction or the modification would increase the hazardous waste incinerator capacity above
145 the capacity specified in the operation plan as of January 1, 1990, or the capacity specified in
146 the operation plan application as of January 1, 1990, if no operation plan approval has been
147 issued as of January 1, 1990;
148 (c) an application for modification of a commercial nonhazardous solid waste
149 incinerator if the construction of the modification would cost 50% or more of the cost of
150 construction of the original incinerator or the modification would result in an increase in the
151 capacity or throughput of the incinerator of a cumulative total of 50% above the total capacity

152 or throughput that was approved in the operation plan as of January 1, 1990, or the initial
153 approved operation plan if the initial approval is subsequent to January 1, 1990; or
154 (d) an application for modification of a commercial nonhazardous solid or hazardous
155 waste treatment, storage, or disposal facility, other than an incinerator, if the modification
156 would be outside the boundaries of the property owned or controlled by the applicant, as shown
157 in the application or approved operation plan as of January 1, 1990, or the initial approved
158 operation plan if the initial approval is subsequent to January 1, 1990.
159 (2) Capacity under Subsection (1)(b) shall be calculated based on the throughput
160 tonnage specified for the trial burn in the operation plan or the operation plan application if no
161 operation plan approval has been issued as of January 1, 1990, and on annual operations of
162 7,000 hours.
163 (3) (a) (i) No person may own, construct, modify, or operate any facility or site for the
164 purpose of disposing of nonhazardous solid waste or treating, storing, or disposing of
165 hazardous waste without first submitting and receiving the approval of the executive secretary
166 for a [nonhazardous solid or hazardous waste operation plan] waste permit for that facility or
167 site.
168 (ii) (A) A waste permittee who is the present owner of a facility or site that is subject to
169 a permit may submit to the executive secretary information, a report, or a plan for a proposed
170 activity under a permit without obtaining the consent of any other permittee who is not also a
171 present owner of the facility or site.
172 (B) A permittee who is not the present owner of a facility or site that is subject to a
173 permit must first obtain consent of the permittee who is the present owner before submitting to
174 the executive secretary any information, report, or plan for a proposed activity under a permit.
175 (b) (i) Except for facilities that receive the following wastes solely for the purpose of
176 recycling, reuse, or reprocessing, no person may own, construct, modify, or operate any
177 commercial facility that accepts for treatment or disposal, with the intent to make a profit, any
178 of the wastes listed in Subsection (3)(b)(ii) without first submitting a request to and receiving
179 the approval of the executive secretary for an operation plan for that facility site.
180 (ii) Wastes referred to in Subsection (3)(b)(i) are:
181 (A) fly ash waste, bottom ash waste, slag waste, or flue gas emission control waste
182 generated primarily from the combustion of coal or other fossil fuels;

183 (B) wastes from the extraction, beneficiation, and processing of ores and minerals; or
184 (C) cement kiln dust wastes.
185 (c) (i) No person may construct any facility listed under Subsection (3)(c)(ii) until he
186 receives, in addition to and subsequent to local government approval and subsequent to the
187 approval required in Subsection (3)(a), approval by the governor and the Legislature.
188 (ii) Facilities referred to in Subsection (3)(c)(i) are:
189 (A) commercial nonhazardous solid or hazardous waste treatment or disposal facilities;
190 and
191 (B) except for facilities that receive the following wastes solely for the purpose of
192 recycling, reuse, or reprocessing, any commercial facility that accepts for treatment or disposal,
193 with the intent to make a profit: fly ash waste, bottom ash waste, slag waste, or flue gas
194 emission control waste generated primarily from the combustion of coal or other fossil fuels;
195 wastes from the extraction, beneficiation, and processing of ores and minerals; or cement kiln
196 dust wastes.
197 (d) No person need obtain gubernatorial or legislative approval for the construction of
198 a hazardous waste facility for which an operating plan has been approved by or submitted for
199 approval to the executive secretary under this section before April 24, 1989, and which has
200 been determined, on or before December 31, 1990, by the executive secretary to be complete,
201 in accordance with state and federal requirements for operating plans for hazardous waste
202 facilities even if a different geographic site is subsequently submitted.
203 (e) No person need obtain gubernatorial and legislative approval for the construction of
204 a commercial nonhazardous solid waste disposal facility for which an operation plan has been
205 approved by or submitted for approval to the executive secretary under this section on or before
206 January 1, 1990, and which, on or before December 31, 1990, the executive secretary
207 determines to be complete, in accordance with state and federal requirements applicable to
208 operation plans for nonhazardous solid waste facilities.
209 (f) Any person owning or operating a facility or site on or before November 19, 1980,
210 who has given timely notification as required by Section 3010 of the Resource Conservation
211 and Recovery Act of 1976, 42 U.S.C. Section 6921, et seq., and who has submitted a proposed
212 hazardous waste plan under this section for that facility or site, may continue to operate that
213 facility or site without violating this section until the plan is approved or disapproved under

214 this section.
215 (g) (i) The executive secretary shall suspend acceptance of further applications for a
216 commercial nonhazardous solid or hazardous waste facility upon a finding that he cannot
217 adequately oversee existing and additional facilities for permit compliance, monitoring, and
218 enforcement.
219 (ii) The executive secretary shall report any suspension to the Natural Resources,
220 Agriculture, and Environment Interim Committee.
221 (4) The executive secretary shall review each proposed nonhazardous solid or
222 hazardous waste operation plan to determine whether that plan complies with the provisions of
223 this part and the applicable rules of the board.
224 (5) (a) If the facility is a class I or class II facility, the executive secretary shall approve
225 or disapprove that plan within 270 days from the date it is submitted.
226 (b) Within 60 days after receipt of the plans, specifications, or other information
227 required by this section for a class I or II facility, the executive secretary shall determine
228 whether the plan is complete and contains all information necessary to process the plan for
229 approval.
230 (c) (i) If the plan for a class I or II facility is determined to be complete, the executive
231 secretary shall issue a notice of completeness.
232 (ii) If the plan is determined by the executive secretary to be incomplete, he shall issue
233 a notice of deficiency, listing the additional information to be provided by the owner or
234 operator to complete the plan.
235 (d) The executive secretary shall review information submitted in response to a notice
236 of deficiency within 30 days after receipt.
237 (e) The following time periods may not be included in the 270 day plan review period
238 for a class I or II facility:
239 (i) time awaiting response from the owner or operator to requests for information
240 issued by the executive secretary;
241 (ii) time required for public participation and hearings for issuance of plan approvals;
242 and
243 (iii) time for review of the permit by other federal or state government agencies.
244 (6) (a) If the facility is a class III or class IV facility, the executive secretary shall

245 approve or disapprove that plan within 365 days from the date it is submitted.
246 (b) The following time periods may not be included in the 365 day review period:
247 (i) time awaiting response from the owner or operator to requests for information
248 issued by the executive secretary;
249 (ii) time required for public participation and hearings for issuance of plan approvals;
250 and
251 (iii) time for review of the permit by other federal or state government agencies.
252 (7) If, within 365 days after receipt of a modification plan or closure plan for any
253 facility, the executive secretary determines that the proposed plan, or any part of it, will not
254 comply with applicable rules, the executive secretary shall issue an order prohibiting any action
255 under the proposed plan for modification or closure in whole or in part.
256 (8) Any person who owns or operates a facility or site required to have an approved
257 hazardous waste operation plan under this section and who has pending a permit application
258 before the United States Environmental Protection Agency shall be treated as having an
259 approved plan until final administrative disposition of the permit application is made under this
260 section, unless the board determines that final administrative disposition of the application has
261 not been made because of the failure of the owner or operator to furnish any information
262 requested, or the facility's interim status has terminated under Section 3005 (e) of the Resource
263 Conservation and Recovery Act, 42 U.S.C. Section 6925 (e).
264 (9) No proposed nonhazardous solid or hazardous waste operation plan may be
265 approved unless it contains the information that the board requires, including:
266 (a) estimates of the composition, quantities, and concentrations of any hazardous waste
267 identified under this part and the proposed treatment, storage, or disposal of it;
268 (b) evidence that the disposal of nonhazardous solid waste or treatment, storage, or
269 disposal of hazardous waste will not be done in a manner that may cause or significantly
270 contribute to an increase in mortality, an increase in serious irreversible or incapacitating
271 reversible illness, or pose a substantial present or potential hazard to human health or the
272 environment;
273 (c) consistent with the degree and duration of risks associated with the disposal of
274 nonhazardous solid waste or treatment, storage, or disposal of specified hazardous waste,
275 evidence of financial responsibility in whatever form and amount that the executive secretary

276 determines is necessary to insure continuity of operation and that upon abandonment, cessation,
277 or interruption of the operation of the facility or site, all reasonable measures consistent with
278 the available knowledge will be taken to insure that the waste subsequent to being treated,
279 stored, or disposed of at the site or facility will not present a hazard to the public or the
280 environment;
281 (d) evidence that the personnel employed at the facility or site have education and
282 training for the safe and adequate handling of nonhazardous solid or hazardous waste;
283 (e) plans, specifications, and other information that the executive secretary considers
284 relevant to determine whether the proposed nonhazardous solid or hazardous waste operation
285 plan will comply with this part and the rules of the board; and
286 (f) compliance schedules, where applicable, including schedules for corrective action
287 or other response measures for releases from any solid waste management unit at the facility,
288 regardless of the time the waste was placed in the unit.
289 (10) The executive secretary may not approve a commercial nonhazardous solid or
290 hazardous waste operation plan that meets the requirements of Subsection (9) unless it contains
291 the information required by the board, including:
292 (a) evidence that the proposed commercial facility has a proven market of
293 nonhazardous solid or hazardous waste, including:
294 (i) information on the source, quantity, and price charged for treating, storing, and
295 disposing of potential nonhazardous solid or hazardous waste in the state and regionally;
296 (ii) a market analysis of the need for a commercial facility given existing and potential
297 generation of nonhazardous solid or hazardous waste in the state and regionally; and
298 (iii) a review of other existing and proposed commercial nonhazardous solid or
299 hazardous waste facilities regionally and nationally that would compete for the treatment,
300 storage, or disposal of the nonhazardous solid or hazardous waste;
301 (b) a description of the public benefits of the proposed facility, including:
302 (i) the need in the state for the additional capacity for the management of nonhazardous
303 solid or hazardous waste;
304 (ii) the energy and resources recoverable by the proposed facility;
305 (iii) the reduction of nonhazardous solid or hazardous waste management methods,
306 which are less suitable for the environment, that would be made possible by the proposed

307 facility; and
308 (iv) whether any other available site or method for the management of hazardous waste
309 would be less detrimental to the public health or safety or to the quality of the environment;
310 and
311 (c) compliance history of an owner or operator of a proposed commercial
312 nonhazardous solid or hazardous waste treatment, storage, or disposal facility, which may be
313 applied by the executive secretary in a nonhazardous solid or hazardous waste operation plan
314 decision, including any plan conditions.
315 (11) The executive secretary may not approve a commercial nonhazardous solid or
316 hazardous waste facility operation plan unless based on the application, and in addition to the
317 determination required in Subsections (9) and (10), the executive secretary determines that:
318 (a) the probable beneficial environmental effect of the facility to the state outweighs
319 the probable adverse environmental effect; and
320 (b) there is a need for the facility to serve industry within the state.
321 (12) Approval of a nonhazardous solid or hazardous waste operation plan may be
322 revoked, in whole or in part, if the person to whom approval of the plan has been given fails to
323 comply with that plan.
324 (13) The executive secretary shall review all approved nonhazardous solid and
325 hazardous waste operation plans at least once every five years.
326 (14) The provisions of Subsections (10) and (11) do not apply to hazardous waste
327 facilities in existence or to applications filed or pending in the department prior to April 24,
328 1989, that are determined by the executive secretary on or before December 31, 1990, to be
329 complete, in accordance with state and federal requirements applicable to operation plans for
330 hazardous waste facilities.
331 (15) The provisions of Subsections (9), (10), and (11) do not apply to a nonhazardous
332 solid waste facility in existence or to an application filed or pending in the department prior to
333 January 1, 1990, that is determined by the executive secretary, on or before December 31,
334 1990, to be complete in accordance with state and federal requirements applicable to operation
335 plans for nonhazardous solid waste facilities.
336 (16) Nonhazardous solid waste generated outside of this state that is defined as
337 hazardous waste in the state where it is generated and which is received for disposal in this

338 state shall not be disposed of at a nonhazardous waste disposal facility owned and operated by
339 local government or a facility under contract with a local government solely for disposal of
340 nonhazardous solid waste generated within the boundaries of the local government, unless
341 disposal is approved by the executive secretary.
342 (17) This section may not be construed to exempt any facility from applicable
343 regulation under the federal Atomic Energy Act, 42 U.S.C. Sections 2014 and 2021 through
344 2114.
345 Section 3. Section 19-6-108.3 is enacted to read:
346 19-6-108.3. Executive secretary to issue written assurances, make determinations,
347 and partition permits -- Board to make rules.
348 (1) Based upon risk to human health or the environment from potential exposure to
349 hazardous waste, the executive secretary may:
350 (a) issue an enforceable written assurance to a prospective purchaser, tenant, or lender
351 acquiring an interest in real property covered by a waste permit that the person to whom the
352 assurance is issued:
353 (i) is not a permittee under the waste permit; and
354 (ii) will not be subject to an enforcement action under this part regarding the real
355 property covered by the waste permit;
356 (b) determine that corrective action to the real property covered by a waste permit is:
357 (i) complete;
358 (ii) unnecessary with an environmental covenant; or
359 (iii) unnecessary without an environmental covenant; and
360 (c) partition or delist from a waste permit a portion of real property subject to the waste
361 permit after determining that corrective action for that portion of real property is:
362 (i) complete;
363 (ii) unnecessary with an environmental covenant; or
364 (iii) unnecessary without an environmental covenant.
365 (2) If the executive secretary determines that an environmental covenant is necessary
366 under Subsection (1)(b) or (c), the executive secretary shall require that the real property be
367 subject to an environmental covenant according to Title 57, Chapter 25, Uniform
368 Environmental Covenants Act.

369 (3) An assurance issued under Subsection (1) protects the person to whom the
370 assurance is issued from any cost recovery and contribution action under state law.
371 (4) By following the procedures and requirements of Title 63, Chapter 46b,
372 Administrative Procedures Act, the board may adopt rules to administer this section.
373 Section 4. Effective date.
374 If approved by two-thirds of all the members elected to each house, this bill takes effect
375 upon approval by the governor, or the day following the constitutional time limit of Utah
376 Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto,
377 the date of veto override.




Legislative Review Note
as of 2-20-07 8:15 AM

Office of Legislative Research and General Counsel